Arizona Eagletarian

Wednesday, May 23, 2012

Redistricting -- another Motion to Dismiss; other Voting Rights Act concerns; Rosemont Copper Power Line decision

This afternoon, Arizona Independent Redistricting Commission attorneys filed response to the Republican lawsuit that seeks to invalidate the new legislative district map (in federal court), in the form of another Motion to Dismiss. On Monday, AIRC counsel filed response in Maricopa County Superior Court to the other lawsuit (which seeks to strike down the new Congressional district map).

As I noted on April 29, the entire objective of this suit (in federal court) is summed up in paragraph 135 of the complaint:

The one-person/one-vote requirement of the equal protection clause of the Fourteenth Amendment does not permit legislative districts to deviate from the ideal population except when justified by a compelling state interest. A plan with legislative districts that do not exceed the ideal population by more than five percent over or five percent under the ideal is presumed not to violate the one-person/one vote requirement of the equal protection clause of the Fourteenth Amendment, but the presumption of constitutionality is rebuttable. Larios, 300 F.Supp.2d at 1341. (emphasis mine)

However, this Motion to Dismiss says:

“[R]edistricting . . . legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt.” Wise v. Lipscomb, 437 U.S. 535, 539 (1978). Despite Plaintiffs’ extensive and immaterial criticism of the Commission, their sole legal challenge is to minor population deviations among districts in Arizona’s legislative map. Consistent with courts’ deference, it is well settled that where, as here, the maximum population deviation is less than 10%, the deviation is considered “minor,” and the Court presumes that the legislative map satisfies one-person, one vote. E.g., Brown v. Thomson, 462 U.S. 835, 842-43 (1983). This presumption can only be rebutted if Plaintiffs show that the deviation results solely from an unconstitutional or irrational state policy. Rodriguez v. Pataki, 308 F. Supp. 2d 346, 365 (S.D.N.Y.), summarily aff’d, 543 U.S. 997 (2004). Plaintiffs fail to rebut the presumption in this case.

The Complaint itself and the legislative record of the Commission’s activity establish that the minor population deviations result from rational and legitimate state policies, including compliance with Section 5 of the Voting Rights Act (“VRA”) and the other goals in article IV, part 2, section 1(14) of the Arizona Constitution. (emphasis mine)

The remaining sixteen pages of the Motion, as well as the 164 pages of exhibits, would seem to blow the Tea Partisan/Republican lawsuit completely out of the water. That documentation, on my initial scan through it, seems to make a pretty strong case rebutting the Complaint.

Again, reviewing my post from April 29,

I've read through the federal court lawsuit and to my untrained eye it appears the only substantive (but still not necessarily valid) claim is that the GOP plaintiffs (Tea Partisans, such as convicted felon Wes Harris, the first named plaintiff was a co-founder of one of the local Tea Party groups) believe their vote has been diluted by virtue of over populating Republican leaning legislative districts and underpopulating Democratically leaning districts.

Apparently, based on AIRC counsel characterizing the Complaint as extensive and immaterial criticism of the Commission except for the one question of law, I'm not the only one to have gotten the same impression of Liburdi and Hauser's folly (the lawsuit).

-----

Unless you've been hermetically sealed away over the last week, you know that Arizona Secretary of State Ken Bennett stepped in a big ol' flaming bag of dog doo-doo of his own making. Last week, we found out that over the course of a few months, Bennett had been going back and forth -- having been egged on by birthers (I would be quite surprised if Wes Harris had NOT instigated that whole mess) -- with the keepers of birth records in Hawaii seeking to confirm that President Obama actually had been born there.

Of course, after we learned, last week, that Bennett had taken the birther bait, he started hearing from Arizonans outraged over this massive error in judgment.

By the way, I offer a hat tip to former Arizona muckraker Nick Martin who reported on this situation for Talking Points Memo and obtained copies of several email messages between Bennett and officials in Hawaii. Bennett late Tuesday finally got what he (settled for) wanted from Hawaii.

Briefly recapping, Bennett had been subjected to a deluge of more than 1,200 calls and emails from the lunatic, birther fringe. Rather than gently, but firmly telling them that the matter had been settled many times over, Bennett took the bait and ended up with egg (or something else) all over his face. By the way, Arizona Republic columnist Laurie Roberts also laid into Bennett quite emphatically in a series of columns this week.

But NOBODY (neither journalist nor public official), to my knowledge, has publicly asked the question that is likely the most relevant: How in the world would Bennett have been able to obtain preclearance for an effort to change how ONE PRESIDENTIAL CANDIDATE would appear (or NOT) on the 2012 general election ballot? Arizona must obtain said preclearance for ALL changes to voting laws and procedures because of Section 5 of the federal Voting Rights Act.

-----

Today, according to a press release from Save the Scenic Santa Ritas, the Arizona Corporation Commission apparently voted unanimously to delay construction of a high voltage power line from Tucson Electric Power facilities to the site for a proposed Rosemont Copper mining operation in the Santa Rita Mountains south of Tucson.

Rosemont Copper, the company and the proposed project, has been surrounded by controversy from the get go. In March, the ACC temporarily put the project on hold on a 3-2 vote with Republican Bob Stump voting with Democrats Sandra Kennedy and Paul Newman due to concern over previous exclusion of testimony by intervenor Elizabeth Webb.

That decision apparently caught ACC chair Gary Pierce and (former ALEC bigwig) Brenda Burns by surprise. Pierce later circulated a proposed order that would have dramatically narrowed the scope of what the ACC could consider in the whether to allow construction of the power line to proceed before Rosemont receives federal approval for environmental impact concerns.

However, today's (unanimous) ruling:

"In a major victory for opponents of the proposed Rosemont Copper Mine, the Arizona Corporation Commission (ACC) today voted to delay construction of a high voltage power line until the Rosemont Copper Company obtains major environmental permits for the proposed copper mine south of Tucson."

A great deal of uncertainty apparently still surrounds whether Rosemont will ever obtain those permits.

-----

From Saving the Scenic Santa Ritas:

May 23, 2012

Arizona Corporation Commission delays Rosemont Copper’s power line

No construction until environmental protection permits are approved

(Tucson, Ariz.) In a major victory for opponents of the proposed Rosemont Copper Mine, the Arizona Corporation Commission (ACC) today voted to delay construction of a high voltage power line until the Rosemont Copper Company obtains major environmental permits for the proposed copper mine south of Tucson.

“This decision recognizes the Commission’s duty to minimize and mitigate the environmental impacts of the massive copper mine before allowing construction of the power line,” says Gayle Hartmann, president of Save the Scenic Santa Ritas, a Tucson-based citizen’s group opposed to the mine.

The five-member Commission voted unanimously to accept language offered by Republican Commissioner Brenda Burns that added key stipulations to the Commission’s decision to approve construction of the power line.

Rosemont will not commence construction of the power line until five key permits necessary to begin construction and operation of the copper mine have been obtained.

Rosemont will pay for all construction, operation and maintenance costs of the power line that will be owned by Tucson Electric Power Company.

If there is any reason to later remove the power line, Rosemont will pay all costs.

The transmission line, which would be built for the sole benefit of Rosemont Copper, is planned for a 12-mile mile corridor that bisects the nation’s oldest grazing research area in the Santa Rita Experimental Range, up the western slope of the Santa Rita Mountains and over its crest to the mine site on the eastern face of the Santa Ritas.

The Commission’s decision requires Rosemont to obtain four environmental permits and one state right-of-way permit prior to beginning construction of the mine on the Coronado National Forest.

These include:

A “Record of Decision” from the Coronado National Forest that approves Rosemont’s Mine Plan of Operations;

A Clean Water Act Section 404 permit issued by the U.S. Army Corps of Engineers concerning Rosemont’s proposal to dump billions of tons of toxic mine waste in canyons, valleys and streams;

Arizona Department of Environmental Quality approval of the U.S. Army Corps of Engineers’ Clean Water Act Section 404 permit to ensure it meets Arizona surface water quality standards; and

An air quality protection permit that has already been denied by Pima County. Rosemont is now seeking the permit from ADEQ.

In addition, the Commission is requiring Rosemont to obtain a state Land Department right-of- way allowing construction of the power line and an accompanying water line across the Santa Rita Experimental Range.

The massive open-pit mine proposed by Rosemont Copper is opposed by a diverse coalition of private citizens, ranchers, businesses, and environmental groups. During the ACC’s line-siting process, Save the Scenic Santa Ritas, the Tucson Audubon Society, Center for Biological Diversity, and the Sky Island Alliance sought and were granted status as parties to these proceedings.